United States v. Hughes
Opinion of the Court
MEMORANDUM
INTRODUCTION
Valerie Hughes pled guilty to bank fraud in violation 18 U.S.C. § 1344. Applying two-level enhancements for “more than minimal planning,” see U.S.S.G. § 2F1.1(b)(2) (1998),
I. REMAND
Alleging Booker error, Hughes contends the district court imposed her sentence while mistakenly believing the U.S.S.G. were mandatory. As the Guidelines are now discretionary and ascertaining whether the district court would have imposed a materially different sentence under a 'discretionary regime is not possible on the record before us, we remand for the district court’s discretionary reconsideration of Hughes’ sentence in light of Ameline, 409 F.3d 1073.
However, because in determining whether it will impose a different sentence, the district court, under Ameline, must still consider the now-discretionary Guidelines, we resolve the enhancement and restitution issues the parties fully briefed on appeal. See United States v. Moreno-Hernandez, 419 F.3d 906, 916 n. 9 (9th Cir. 2005) (finding limited Ameline remand appropriate but resolving question concerning applicability of Guideline enhancement).
II. MORE THAN MINIMAL PLANNING
The district court did not err in finding Hughes’ bank fraud scheme involved more than minimal planning. Based upon Hughes’ admissions, her criminal conduct took place over many months and involved numerous check forgeries. This alone supports the enhancement under U.S.S.G. § 2F1.1(b)(2). See U.S.S.G. § 1B1.1, comment, (n.1(f)) (stating more than minimal planning exists “in any case
III. VULNERABLE VICTIM
Application of the vulnerable victim enhancement was also proper. Hughes contends Pearl Gustin was not a victim of her bank fraud and, thus, could not be a vulnerable victim for enhancement purposes. This argument lacks merit. A vulnerable victim need not be the technical victim of the convicted offense. United States v. Medrano, 241 F.3d 740, 745 n. 4 (9th Cir. 2001). Rather, a victim under U.S.S.G. § 3A1.1(b)(1) need only suffer harm or significant inconvenience from the defendant’s conduct. See id. (citing United States v. McCall, 174 F.3d 47, 51 (2nd. Cir. 1998) (finding accountholders may be vulnerable victims of embezzlement because they will at least suffer significant inconvenience)).
In her plea agreement, Hughes admitted the following facts which establish a proper basis for the district court’s imposition of the vulnerable victim enhancement.
IV. AMOUNT OF LOSS
The district court did not err in determining the amount of loss attributable to Hughes exceeded $70,000. During Hughes’ sentencing hearing, her counsel stipulated to an amount of loss greater than $70,000. Additionally, the admitted facts in Hughes’ plea agreement support the district court’s finding as to loss. She admitted forging seven checks totaling $11,011.06. She additionally agreed execution of her and Henson’s scheme relieved Gustin’s account of $59,833.87. Independent of Hughes’ counsel’s stipulation, these admissions establish Hughes’ conduct caused a total loss of at least $70,844.87. Consequently, the district court properly applied the six-level enhancement under U.S.S.G. § 2F1.1(b)(1)(G) for crimes involving fraud which cause a loss exceeding $70,000.
V. RESTITUTION
The district court did not abuse its discretion in ordering Hughes pay restitution of $78,239.48. Hughes pled guilty to eight counts of bank fraud and, thus, was subject to the provisions of the Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A(a)(1), (c). Because Hughes’ crime involved as an element a scheme or pattern of criminal conduct, the district court was not confined to the indicted amounts in ordering restitution; rather, it could properly order restitution for losses
CONCLUSION
Based upon the above reasoning, we AFFIRM the restitution order. We also AFFIRM the district court’s imposition of enhancements for amount of loss exceeding $70,000, for “vulnerable victim,” and for “more than minimal planning.” We, however, REMAND Hughes’ sentence in accordance with Ameline.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. In Hughes’ plea agreement, the Government and Hughes appropriately agreed the 1998 U.S.S.G. were applicable to Hughes’ crimes. Accordingly, all U.S.S.G. references herein are to the 1998 version.
. Hughes contends her plea agreement contains no admissions the district court could rely upon at sentencing. We disagree. The facts section of Hughes’ agreement reads, "The United States and the Defendant stipulate and agree the following facts are accurate.” Hughes cites no law to support her argument that by stipulating and agreeing to the accuracy of facts, she neither admitted those facts nor stipulated to their truth. Our own search also fails to find support for Hughes’ distinction. Thus, her argument is frivolous, and the district court properly relied upon the stipulations in her plea agreement at sentencing. See United States v. Howard, 894 F.2d 1085, 1089 n. 2 (9th Cir. 1990).
Reference
- Full Case Name
- UNITED STATES of America, — v. Valerie M. HUGHES, aka Valerie Knapp-Waddell, Defendant—
- Status
- Published